Art. 454 Civil Code: "Contract of sale"
Contracts of sale and purchase arose in the marketpractice when the money appeared. Until then, traders exchanged their goods. With the advent of cash, commodity exchange has not stopped, but its volume has significantly decreased.
In the laws of most countriesthe norms regulating purchase and sale transactions are stipulated. The domestic legal system is not an exception. Key features of sales transactions are disclosed inArt. 454-491 Civil Code of the Russian Federation. These norms are included in par. 1 of Chapter 30 of the Code. Further in the article we will consider in more detailcontract of sale (Article 454 of the Civil Code of the Russian Federation).
The essence of the transaction
How is it fixed by paragraph1 tbsp. 454 Civil Code of the Russian Federation, on the transaction one participant (seller) acceptsthe obligation to transfer the thing to another (the buyer). The latter, in turn, undertakes to accept the goods and pay for it the agreed price (the amount of money).
Regulationsparagraph 1 of Art. 454 Civil Code of the Russian Federationand other norms of pairs. 1 Ch. 30 are applied to transactions with securities and currency values, if the legislation does not fix special rules.
In cases stipulated by the Civil Code or other normative document, the specifics of the acquisition and sale of certain types of products are regulated by laws and other legal acts.
Provisions fixed in par. 1 Ch. 30 of the Code, are applied to transactions with property rights, unless otherwise derives from their nature or content.
These rules are fixed in cl. 2-4Art. 454 Civil Code of the Russian Federation.
Individual types of transactions
On their regulatory regulation is stated inparagraph 5 of Art. 454 Civil Code of the Russian Federation.
Some types of transactions include:
- retail purchase and sale;
- delivery of products;
- supply of products for state needs;
- sale of real estate;
- power supply;
- sale of the enterprise.
These provisions apply the provisions of the pairs. 1 Ch. 30, if the Code does not provide for special rules.
Art. 454 Civil Code of the Russian Federation with comments
The contract stipulated in the first paragraph is:
- Consensual. This means that the obligations and rights of the parties arise when they reach an agreement.
- Recompensed. The seller of things has the right to receive money in return.
- Bilateral-binding. Each participant in the transaction has responsibilities and rights.
It is not necessary to confuse the moment of occurrence of obligations and opportunities under the contract with the moment of transfer of ownership to the thing to be sold.
Subject of the transaction
Under the contract provided for inArt. 454 Civil Code of the Russian Federation, the subject is the commodity - the thing of the materialpeace, which can be in the possession of man and ensure the satisfaction of his needs. Things include both securities and cash. However, money can not be the subject of purchase and sale, i.e., a commodity, as it contradicts the essence of such a transaction.
The funds are transferred by the buyer as a counter provision. They can be considered an equivalent object in the sale-purchase relationship.
Apply the provisionsArt. 454 Civil Code of the Russian Federationit is possible when selling any item not withdrawn from circulation.
There are things limited in turnover.Their sale or purchase is carried out under special rules, subject to permission. For example, collections and exhibits that are part of the Museum Fund of Russia, can be alienated with the consent of the executive federal authority that regulates the cultural sphere.
Within the meaning ofArt. 454 Civil Code of the Russian Federation, the transaction involved two parties: the seller and the buyer. Both can be any subject of law. As a rule, in the role of sellers and buyers are legal entities and individuals.
It should be noted that when concluding a contractArt. 454 Civil Code of the Russian Federation, it is necessary to take into account each time the requirements of the legislation on the de-and legal capacity of persons.
Change of ownership
Transition of the right to the goods from the seller to the buyer is considered one of the key signs of purchase and sale. Meanwhile, in all cases, the transaction does not involve a change in ownership.
If a federal unitary enterprise implementsobject of another state unitary organization, the thing passes from the economic management of the first to the jurisdiction of the second. The owner of the property remains the same.
Form of agreement
In general cases it is regulated by articles 158-163, 165, and also art. 434 of the Code.
If we talk about individual types of sales transactions (retail, real estate sales, etc.), then they are subject to special regulations.
In cases stipulated by regulatory enactments, the contract must pass state registration. This rule, in particular, applies to transactions with real estate.
Price in the contract
By general rules, it is not considered an essential condition of the agreement.
If the value is not provided for in the contract, it can not be determined by the terms of the transaction, the thing should be sold at a price that is usually set for similar goods in comparable conditions.
For some types of goods, the price isis considered an essential clause of the agreement. For example, in accordance with the provisions of paragraph 1 of paragraph 555 of the Code, the contract for the sale of a real estate should provide for its price. In the absence of an appropriate condition, the rules set forth in clause 3 424 of the Civil Code can not be applied.
They are considered a very specific subjectpurchase and sale. Special rules for transactions with securities are present in different regulatory acts and articles of the Civil Code (146, 915 of the Code, Federal Law No. 39, No. 102, No. 208).
The purchase and sale of these financial instruments can be carried out subject to the provisions of Art. 454-491 CC if the law does not fix a special procedure for concluding contracts.
At the same time, some norms of the Code can not be applied to the sale and purchase of securities because of their specifics. For example, such transactions are not covered by the provisions of Articles 469, 467.
Their types, as well as the rules for concluding transactions with them, are fixed by Federal Law No. 173 and regulatory documents adopted in accordance with it.
As Article 1 of this Law establishes, foreign exchange values are foreign currency and external securities. Federal Law No. 173 also lists the permissible operations with these items.
The basic rule of currency regulation is reducedto a ban on transactions with the currency between residents (for example, between natural persons living in Russia permanently). At the same time, there are exceptions to this rule. They are given in Article 9 of Federal Law No. 173.
The provisions of the Civil Code on the contract of saleextend to transactions with currency values, unless special rules for their fulfillment are fixed by law. It is worthwhile, however, to say that in practice this approach is somewhat corrected.
So, for example, on the basis of Part 2 of Article 9 of the Federal LawNo 173, operations with the currency on transactions carried out by authorized banks on their behalf and at their own expense are carried out according to the rules determined by the Central Bank. In this case, a special procedure is established not by law, but by an authorized body.
Specificity of transactions with certain types of goods
Special rules for concluding suchcontracts can be established depending on the objects or the subject composition. In the first case, for example, we can talk about goods that are limited in turnover.
As for the subject composition,Items can be purchased only by those persons specified in regulatory enactments. For example, tobacco products are sold exclusively to adults. Often a rule is established that the sale of an object is carried out taking into account the pre-emptive right to purchase (Article 8 of Federal Law No. 101).
Legislation may provide for a special procedure for registration of the contract (only in the framework of bidding, for example), pricing, etc.
They can also be the subject of a deal. However, in 454 article there is a reservation. The purchase and sale of rights is allowed, unless otherwise follows from their nature or content.
In transactions of this kind, the requirements of the 478 standards (on completeness), 479 (about the set of products), 481 (on packaging, packaging), etc., are not taken into account.
In addition to the nature and content of property rights, it is necessary to take into account the instructions in the law and other normative documents on the specifics of their transition from one person to another.
For example, if we talk about the transitionof the law of obligations, several special articles (382-290 norms) are envisaged in the Civil Code. If the recipient of the right has to pay the agreed amount of money to the transferor, then there is a sale and purchase. Quite often, along with the sale of the obligation law, the debt is transferred.
Transactions with stakes in equity LLC
They are quite common in practice. These transactions are governed by special provisions of the Civil Code and Federal Law No. 14. In these cases, as in many previous ones, the rules of articles 454-491 of the Civil Code are applicable to the sale and purchase of shares taking into account their specifics as objects of civil law.